Bromine Capital Solutions (Pvt) Ltd v Godfrey Nyabvure and Messenger of Court, Chinhoyi

### Preamble
1
HCC21/23
CIV “A” 34/22
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BROMINE CAPITAL SOLUTIONS (PVT) LTD

AND

GODFREY NYABVURE

AND

MESSENGER OF COURT, CHINHOYI

HIGH COURT OF ZIMBABWE

MUZOFA & BACHI- MUZAWAZI JJ

CHINHOYI, 7 JUNE 2023

CIVIL APPEAL

J Zuze, for the appellant

M Mutswairo, for the 1st respondent

MUZOFA J: After hearing this appeal matter we dismissed it in an ex tempore judgment. The appellant has requested for the written reasons. These are they.

The appellant filed an ex- parte application before the court a quo for a spoliation order. On the return date the order was dismissed. The appellant appeals against such dismissal.

It is now trite that a spoliation order is a final in nature and determines the immediate right to possession. It is also urgent to restore the status quo ante by a determination of simple facts of possession and dispossession. See Willowvale Estates CC-v-Bryanmore Estates 1990 (3) 5A954.

The applicant must establish peaceful and undisturbed possession and an unlawful deprivation of such possession. The court does not have to consider the rights of the parties at this stage. The rationale is to restore possession and discourage self-help by members of the public. Thus, generally an application for spoliatory relief may be followed by an application or an action to determine the parties’ rights.

The recognised defence to an application for spoliatory relief are that the applicant was not in peaceful and undisturbed possession, or that the dispossession was lawful therefore it did not constitute spoliation. See Banga and Anor-v-Zawe and Ors SC54/14. A dispossession maybe lawful for instance where it is sanctioned by force of a court order.

The proceedings in the court a quo.

The background to this case is as follows:

The appellant entered into a 20 year lease agreement with the 1st respondent. The lease agreement was for appellant to lease a commercial property known as Marbles Bar and Butchery otherwise known as stand number 13586 Glasglow Road Industrial Sites Chinhoyi “the property”.

According to the appellant on the 3rd of December 2022 the 1st respondent broke the entrance locks and changed the keys to all the doors on the property thereby despoiling the appellant. The1st respondent did not have any lawful authority to act as he did. The founding affidavit then canvassed a number of issues that were irrelevant for the purposes of the application.

The 1st respondent opposed the confirmation of the rule nisi on the basis that the appellant was not in peaceful and undisturbed possession of the property. This in one of the recognised defences in an application for spoliation.

After hearing parties, the court a quo dismissed the rule nisi. It considered the applicable law particularly on what constitutes possession. It was also alive to the fact that at this stage it need not consider the rights of the parties. It correctly noted that, the fact that the appellant had a lease whether valid or not was not relevant in the determination of the case. On the affidavits placed before it, it concluded that the applicant did not disclose what if any presence had on the property by way of its possession or workers to confirm possession and control. It also held that the appellant failed to prove that it had or was making any improvements to the property.

Dissatisfied by the findings by the court a quo, the appellant filed an appeal before the court.

The Grounds of Appeal

The court a quo erred in dismissing the application for spoliation order when it was clear that the Appellant had satisfied and proved all the requirements for the granting of an order mandamentem van spolie.

The court a quo erred in failing to find that the Appellant was in peaceful and undisturbed possession of number 13586 Glasglow Road, Industrial Sites, Chinhoyi since November 12, 2018 until it was despoiled by the First Respondent on December 03, 2022.

The court a quo erred and fell into error in failing to find that the Appellant never wilfully surrendered possession of the premisses until it was despoiled of same by the First Respondent on December 03,2022.

The court a quo erred fundamentally in failing to find that the Appellant was unlawfully deprived of possession of the premises by First Respondent on December 03, 2022.

The court a quo erred in granting costs against the Appellant when it decided to dismiss the application.

The submissions before this court

The first respondent raised two preliminary points it his heads of argument. They were later abandoned after counsel for the appellant tendered costs for the infraction which was purely technical.

For the appellant, it was submitted that the court a quo misdirected itself having regard to the following.

That the appellant had a 20 year lease that was still valid.

That the appellant had locked the doors to the property awaiting resolution of a dispute between the Chinhoyi Municipality and the 1st respondent on payment of rates. He was waiting for authority to proceed with renovations from the Municipality.

The fact that the 1st respondent had issued out summons seeking cancellation of the lease agreement and eviction coupled with holding over damages shows that the appellant was still in possession of the property.

The appellant also referred to case law on what constitutes possession and despoliation.

For the 1st respondent, it was submitted and correctly so that despite the number of the grounds of appeal, the real issue is whether the court a quo misdirected itself in finding that the appellant was not despoiled. Put differently whether the court a quo misdirected itself when it made a finding that the appellant did not prove that it was in peaceful possession of the property when the 1st respondent despoiled it.

The respondent referred to the definition of dispossession as encapsulated in Botha & Anor-v-Barret 1996 (2) ZLR 73 (5) @79 E that “unlawful deprivation” to mean that respondent deprived the applicant of possession “forcibly and wrongfully against his consent.”

On the facts, it submitted that the appellant had no presence on the property. This was confirmed by two tenants who took occupation after entering into lease agreements with the 1st respondent. The applicant did not tell the court what was on the property to show possession. Most crucially in an application for eviction filed by the 1st respondent against the appellant, the appellant said it was not on the property.

The issues

The only issue for determination is whether the appellant was in possession of the property and the time of the despoliation.

Analysis

The applicable law has already been referred to.

The applicant had the onus before the court a quo to prove its case on a balance of probabilities. Its case would be set out on the founding affidavit.

The appellant averred on paragraph 7 as read with paragraph 12 of its founding affidavit that the 1st respondent broke its entrance locks on the 3rd of December 2022. The 1st respondent denied this and averred that there was neither activity nor locked doors on the property. Two affidavits were attached to the 1st respondent’s opposing affidavit.

The two affidavits by Traffia Makoni and Tonderai Shambira confirm that they entered into a lease agreement with 1st respondent in respect of the property. Traffia took occupation on 4 august 2022. Tonderai took occupation in November 2022 after renovating the property from 21 September to November 2022.

The applicant unwittingly dismissed the two pieces of evidence as falsely generated to defeat these proceedings. There was no reason advanced for this belief neither was any evidence placed before us to draw an inference of some machinations by the 1st respondent. This was a bare averment and it cannot take the appellant’s case anywhere. I have said the appellant unwittingly dismissed the evidence because it did even not bother to use the evidence before court a quo as a basis to dismiss the evidence.

In this case, it is not in dispute that the appellant and the 1st respondent are locked in same legal proceedings to determine the rights of the parties in an eviction and holding over damages case. The appellant conceded in those proceedings in its plea that it was not operating on the property. Page 26 of the record of proceedings showed that the appellant had no presence on the property from July 2021. In that plea the appellant did not indicate that it had locked its doors. It appears it had abandoned the premises. That averment considered together with Traffia and Tonderai’s affidavits leaves no doubt that the appellant had no presence on the property.

On paragraph 28 of the appellant’s heads of argument, the appellant conceded that Traffia and Tonderai took immediate occupation of the property. If the two took occupation in August and November 2022 that was the time the appellant’s rights were interfered. What did it do about it, nothing, so how can it cry foul of some conduct in December 2022.

The only reasonable inference is that the appellant was not in peaceful possession as at 3 December 2022. Its possession if there was any at all had already been interfered with by 1st respondent through Traffia and Tonderai its tenants.

I would like to dispel the notion relied upon by the appellant about the lease agreement. The lease agreement between the 1st respondent and the appellant gave the appellant personal rights over the property. A mandamus van spoilie is not concerned with the rights of the parties. It answers the question, who is in possession of the property? Has the person been unlawfully dispossessed? So, whether the possessor has a right real or personal is irrelevant. This is what informed the court a quo to consider the lease agreement of no moment in the resolution of the matter before it. The court a quo did not sit to deliberate on the validity of the lease, if it had done so, it would have fallen into error.

The appellant did not dispute that there was no work or any improvements taking place on the ground by it. The appellant therefore failed to prove all the requirements of a spoliation order.

On the issues of costs, although the appellant had raised an issue on the costs. The ground of appeal was not taken further in the heads or argument or in oral submissions before us. It was therefore taken as abandoned.

Disposition

The appellant failed to prove that it was in peaceful possession of the property. The court a quo dismissed the application on the basis that, there was no evidence placed before the court of any work or conduct showing possession. On the other hand, the 1st respondent showed that as of August and November 2022 some people had taken occupancy of the property. We find no misdirection in the court a quo’s decision.

On costs, we were not given any reason to depart from the time honoured principle that costs follow the cause.

It is for those reasons that the following order was made.

The appeal be and is hereby dismissed with costs.

Mangwana and Partner, appellant’s legal practitioners

Mushonga Mutsvairo,1st respondent’s legal practitioner